A battle is simmering over whether the Nassau police commissioner should have the authority to discipline department employees. Police Commissioner Thomas Dale maintains that he has the authority to preside over internal hearings to determine what happens to cops who break the rules. That assertion has not been tested, as no officers have gone to trial since the county legislature gave Dale increased...

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That assertion has not been tested, as no officers have gone to trial since the county legislature gave Dale increased power in May 2012 to discipline officers.

James Carver, who heads the Nassau Police Benevolent Association, says the minute Dale tries to put an officer on "trial" within the department, the union would file a temporary restraining order to stop the proceeding. For several years, such trials have been decided by independent mediators, and Carver says that's how things should stay.

"They want a kangaroo court where the commissioner is prosecutor, judge and jury," Carver said in an interview last week. "That is not a fair way of discipline."

But Frederick Brewington, a lawyer who successfully sued the county for more than $7 million on grounds that the police failed to protect Jo'Anna Bird from her ex-boyfriend, said it is vital that the commissioner be able to discipline his ranks.

"If your underlings don't think you can do anything to discipline them, it strips you of your authority," Brewington said.

Ten cops were disciplined after the department was found to have failed to properly investigate domestic violence calls in the days before Bird's 2009 murder by her estranged boyfriend.

In September, the union filed a case alleging that the legislature's action to broaden Dale's authority is a violation of its contract, which requires disciplinary disputes to be settled by an independent arbitrator.

So far, three judges in a row have recused themselves from the case, court records show.

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It is not clear whether the three judges who have withdrawn from the controversial litigation have given their reasons for doing so on the record; however, they are not required to do so.

It has recently been assigned to a fourth judge, Supreme Court Justice Anthony Parga.

An administrative source within the police department said just the threat of having Dale decide disciplinary cases has sped up justice within the department -- a process that one law enforcement source said typically moves "at a snail's pace."

When Dale took his position in January 2012, there were 33 outstanding disciplinary cases in the department. Since then, that caseload has been reduced to two, the administrative source said.

The reason: Many officers facing discipline used to take their chances with an independent arbitrator, the source said. Now that Dale could have the power to make a decision, officers are afraid to take a chance on trials and are instead agreeing to negotiated settlements with the administration, the source said.

The negotiated settlements have resulted in officers losing about 1,000 accumulated work hours (earned sick and vacation days that they could otherwise have used or cashed out) and two terminations, the source said.

But Carver said that reasoning is flawed. He said there were many causes for the case backlog when Dale took office, none of them involving the mediation system. Cases stalled during the change in leadership, there were several line-of-duty deaths that distracted police commanders from cases, a controversy was under way over a wage freeze imposed by the Nassau Interim Finance Authority, among other reasons, he said.

Judges recuse themselves

He said ironically, only one member of his union was terminated in that time, and that person was dismissed after arbitration.

This is at least the second time in recent years that a string of judges have recused themselves from a case involving Nassau police. About a year ago, two Nassau criminal court judges in a row recused themselves from overseeing the trial of three former police commanders accused of giving favorable treatment to the son of a police benefactor when the teen was suspected of robbery. In that case, a Suffolk judge was eventually appointed to handle the cases.

According to the law, judges are allowed to recuse themselves any time there is a conflict of interest, or a perceived conflict of interest in a case. There are a range of possible conflicts, from old friendships, to affiliations with the county or police or relatives who work for either, to significant campaign contributions from someone involved in the case.

"We have to give the judges the benefit of the doubt," said William Petrillo, a Rockville Centre lawyer who represented one of the police commanders charged in last year's misconduct case. "But it can be frustrating for litigants."

Dan Bagnuola, a spokesman for the Nassau courts, said Nassau Administrative Judge Thomas Adams has not been asked to intervene in the police discipline case yet.

"If there's a pattern of recusals on a particular case and it's brought to the attention of the administrative judge, an assessment may be made as to whether the case should be assigned to a judge outside the county," Bagnuola said.